State ex rel. Fenley v. Ohio Historical Society

Per Curiam. The issue presented by this mandamus action is whether R.C. 149.43 requires a custodian of public records to mail copies of those records upon request. For the reasons which follow, we find that a custodian of public records has no clear legal duty under R.C. 149.43(B) to transmit copies of those records by mail, and we deny the writ. R.C. 149.43(C) authorizes a person who allegedly is aggrieved by a governmental unit’s failure to comply with R.C. 149.43(B) to commence a mandamus action to force compliance, and also to seek reasonable attorney fees. Before a writ of mandamus will issue in a public records case we must find that relator is entitled to respondents’ performance of a clear legal duty. See State ex rel. The Fairfield Leader v. Ricketts (1990), 56 Ohio St.3d 97, 102, 564 N.E.2d 486, 491. As an initial matter, the Society argues that it has no duty to act because Fenley has already been given relief (she was mailed the certificate after a member donated the $7.00 fee), and that mandamus may not be used “to remedy the anticipated nonperformance of a duty.” State ex rel. Home Care Pharmacy, Inc. v. Creasy (1981), 67 Ohio St.2d 342, 343, 21 O.O.3d 215, 216, 423 N.E.2d 482, 483 (holding that where an alleged duty has already been carried out, a writ of mandamus will not be granted to compel observance of the law generally). Fenley counters that she is still an “aggrieved” party under R.C. 149.43(C) because she was not given a copy of the death certificate in accordance with the cost and access requirements of R.C. 149.43(B). We agree with Fenley’s position on this initial matter. The policy she attacks, the Society’s $7.00 mailing fee, remains in effect. To deny Fenley relief under the rule in Home Care Pharmacy would permit persons responsible for public records, to circumvent review of their practices by making exceptions for those who object. Fenley’s ultimate goal is to change the Society’s mailing-charge policy to comply with what she beliéves are the requirements of R.C. 149.43(B). We thus find that she is an “aggrieved” party for R.C. 149.43(C) purposes. The parties stipulate that the death certificate at issue is a public record. The parties disagree, however, over R.C. 149.43(B)’s requirements regarding the mailing of such a record. R.C. 149.43(B) provides: “All public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. Upon request, a person responsible for public records shall make copies available at cost, within a reasonable period of time. In order to facilitate broader access to public records, governmental units shall maintain [511] public records in such a manner that they can be made available for inspection in accordance with this division.” R.C. 149.43(B) does not expressly provide that a custodian of public records must make copies available by mail, nor does it detail any procedure to be followed if copies are mailed. Acknowledging this, Fenley urges this court to construe R.C. 149.43(B) broadly in favor of public disclosure, as required by State ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St.3d 170, 173, 527 N.E.2d 1230, 1232, and to hold that the custodian’s duty to make records “available” includes the obligation to make copies available by mail. Adopting this position would increase the availability of public information. The Society, however, maintains that the plain meaning of R.C. 149.43(B) is contrary to Fenley’s construction. The statute literally requires only that public records be made “available” for inspection “at all reasonable times during regular business hours.” The statute further requires the custodian of the records to make copies “available at cost.” The Society argues that the word “available” is not ambiguous on the subject of mailing copies, and that all that the statute requires custodians to do is to allow inspection and copying at their place of business during business hours. It is a frequently cited rule of statutory construction that “where the terms of a statute are clear and unambiguous, the statute should be applied without interpretation.” Wingate v. Hordge (1979), 60 Ohio St.2d 55, 58, 14 O.O.3d 212, 214, 396 N.E.2d 770, 772. We find that the language of R.C. 149.43 is clear and unambiguous. A custodian of public records who makes those records available for inspection, and who makes copies available upon request at the governmental unit’s place of business, fulfills the responsibilities placed upon him or her by R.C. 149.43. We thus find that the word “available” is not synonymous with “available by mail.” To apply that interpretation would be to rewrite the statute beyond what its literal words will support. Such an interpretation of the statute would require this court to add words to R.C. 149.43. We refuse to do this without a more affirmative authorization from the General Assembly. Moreover, the General Assembly is well equipped to determine what the cost of such a mailing should reasonably be, if it does determine that a duty to mail can appropriately be placed upon the custodian of public records. Forcing the holders of public records to provide copies by mail could conceivably place unacceptable burdens upon the governmental units having custody of the records. The General Assembly can weigh those burdens against the public’s right to know and legislate an equitable balance. Fenley also argues that we should extend the principle established in the second paragraph of the syllabus of State ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786, to the circumstances of [512] this case. That syllabus paragraph reads: “A governmental body refusing to release records has the burden of proving that the records are excepted from disclosure by R.C. 149.43.” Fenley urges us to apply that reasoning to this case, resulting in a burden being placed on a custodian of records to show why copies should not be provided by mail. We do not find Fenley’s argument persuasive. A governmental body’s refusal to release records simply is not analogous to a governmental body’s refusal to mail copies of records it is fully willing to release to the public. R.C. 149.43 places a duty on the custodian of public records to release them, with certain noted exceptions; it places no similar duty to provide copies by mail. Furthermore, R.C. 149.43(B) establishes a standard with which custodians of public records must comply: to make the records available for inspection during business hours and to make copies available at cost. But, the statute also affords a measure of discretion, which this court has held to govern the method of compliance. State ex rel. Recodat Co. v. Buchanan (1989), 46 Ohio St.3d 163, 165, 546 N.E.2d 203, 205; State ex rel. Margolius v. Cleveland (1992), 62 Ohio St.3d 456, 461, 584 N.E.2d 665, 670 (“R.C. 149.43 requires the message, not the medium, to be disclosed.”). Thus, a custodian of public records who complies with the access requirements specified in R.C. 149.43(B) should have some discretion to determine what if any additional access he or she will permit. Many of the arguments presented by both relator and respondents are public policy arguments going to the question of whether it is appropriate to require the custodian of records to provide copies by mail. As discussed supra, those contentions are better addressed by the General Assembly than by this court. For the same reason, it is unnecessary for us to consider the arguments raised by both parties concerning what a “reasonable” cost charged for mailing records should be. Because we hold that R.C. 149.43(B) places no duty on the person responsible for public records to provide copies of those records by mail, relator is not entitled to respondents’ performance of the requested act. The writ of mandamus is denied. Writ denied. Moyer, C.J., Sweeney, Holmes and H. Brown, JJ., concur. Douglas, Wright and Resnick, JJ., dissent.